Kulchyski v. Trent University
As 2004 comes to a close on another turbulent year at Trent University under its current administration, it is timely to review Kulchyski v. Trent University (heard: June 28, 2001). This is an important decision because it confirms the Board of Governors is responsible for the "government, conduct, management and control of the University and of its property, revenues, expenditures, business and affairs... and the Board has all powers necessary or convenient to perform its duties and achieve the objects and purposes of the University". Trent's board members need reminding that they have obligations they must fulfill and cannot abrogate either through delegation or any other means. The Board must govern and must oversee management and hold management accountable. The decision confirms that the board must be a governance board and not simply an advisory board content to rubber-stamp the decisions of the very administrators it is charged with overseeing.
Judge Robert J. Sharpe did not agree with the decision of the other two judges to deny the appeal [of the Divisional court's conclusion that Trent’s Board had jurisdiction under the Trent Act to authorize the closure and sale of Peter Robinson College and Catharine Parr Traill College over the objection of Senate] and would have allowed the appeal to proceed. Judge Sharpe's dissenting opinion is instructive and often overlooked. In his conclusion he noted;
The Board's decision to close two of Trent's five residential colleges and eliminate the University's presence in downtown Peterborough would destroy two of its five constituent distinct intellectual and social communities and would eliminate two of its five centres of learning and focal points of social and cultural activity. I conclude that the decision to close two of Trent's five colleges engages an important issue of educational policy for the University that, pursuant to s. 12 of the Trent Act, requires the approval of the Senate.
Judge Sharpe's decision is printed below. The full decision may be found at the Ontario Courts website or in pdf format here.Peter Kulchyski has since left Trent to Become Head of the Department of Native Studies at the University of Manitoba.
[56] I have had the advantage of reading the reasons for judgment of Finlayson J.A. I respectfully disagree with my colleague's reasoning and conclusions. For the reasons that follow, I would allow the appeal and grant the application for judicial review. I need not repeat the background facts that give rise to this appeal. I will proceed directly to my analysis of the legal issues, mentioning along the way any facts I consider pertinent that have not been dealt with by my colleague.
The Trent Act and Bicameral Governance
[57] The Trent University Act, S.O. 1962-63, c. 192 (the "Trent Act") establishes a bicameral governance structure, allocating authority to the Board of Governors and to the Senate respectively. Each body is given certain enumerated powers. For the purposes of this appeal, as Finlayson J.A. has noted, the crucial powers are that of the Board with respect to "the government, conduct, management and control of the University and of its property, revenues, expenditures, business and affairs" (s. 10) and that of the Senate "to control, regulate and determine the educational policy of the University". (s. 12).
[58] The allocation of powers as between the Board and the Senate represents an attempt to reflect and accommodate the interests and concerns that have to be taken into account in the governance of a modern university. Decisions relating to educational policy are assigned to the Senate, a body comprised primarily of members of the University's academic community. Decisions relating to management and finances are assigned to the Board, a body comprised primarily of lay members, who reflect the broader community interest in the sound and prudent management of an important publicly funded institution. The bicameral scheme of governance is designed to provide an institutional framework that will allow the University to identify and achieve its academic and educational goals in a manner consonant with the interests of the community and public at large.
[59] As I read the Trent Act, the powers of the Board and the Senate are both exclusive and overlapping. They are exclusive in the sense that where a matter is specifically assigned to one body, the other body lacks authority over that matter. For example, the Board has no authority to determine educational policy for the University. Similarly, the Senate has no authority to manage or control the property, revenues, and expenditures of the University. However, not all issues fall neatly into the categories of the matters assigned to the Board and the Senate respectively. As many issues confronting the University present more than one aspect, to that extent, the powers of the Board and Senate overlap. From one aspect, the issue will fall within a power assigned to the Board, while from another aspect, the same issue will fall within a power assigned to the Senate.
[60] The overlapping nature of the respective powers of the Board and the Senate where educational policy intersects with financial matters is evident from the terms of the Trent Act. Section 4 of the Trent Act provides as follows:
The University has power to establish and maintain such faculties, schools, institutes, departments, chairs and courses as the Senate deems necessary and as shall be approved with respect to finances and facilities by the Board. [emphasis added]
Similarly, s. 12 of the Trent Act provides that "[t]he Senate is responsible for the educational policy of the University", and that it may create such faculties, departments, schools, institutes or chairs as it determines "with the approval of the Board in so far as the expenditure of funds and the establishment of faculties are concerned" (emphasis added).
[61] These provisions plainly envisage a power-sharing relationship between Senate and the Board. Decisions falling within these provisions give rise to issues of both financial management and educational policy and hence require the concurrence of both bodies. As the President of the University, Bonnie Patterson, conceded on cross-examination, where a matter has both educational policy and financial implications, the approval of both Senate and the Board is necessary.
[62] Quite apart from these specific provisions, it seems to me that a power-sharing relationship between the Board and the Senate is implicit in the bicameral scheme of governance created by the Trent Act. Where an issue gives rise to aspects falling within the powers of both the Board and the Senate, bicameralism requires the concurrence of both bodies. While each body has exclusive authority to decide that aspect of the decision that falls within its powers, neither body has exclusive or paramount authority over the entire question.
[63] Bicameralism was first introduced in Ontario following the Report of the Royal Commission on the University of Toronto (Toronto: Queen's Printer, 1906). The Royal Commission concluded at p. xxi that the history of the University of Toronto had "demonstrated the disadvantage of direct political control." It sought to establish a scheme that would provide the university with independent governance, reflecting both the public interest in sound management and respect for academic judgment on academic issues. The Royal Commission's plan aimed "at dividing the administration of the University between the Governors, who will possess the general oversight and financial control now vested in the State, and the Senate, with the Faculty Councils, which will direct the academic work and policy." (Ibid.)
[64] Bicameralism has both advantages and disadvantages. On the positive side, it provides a system of governance that distinguishes management issues from issues of educational policy and allocates responsibility for each to specialized governing bodies capable of reflecting the interests and concerns bearing upon the matters assigned. On the negative side, by dividing governing authority, bicameralism may complicate decision-making and, as the experience at Trent sadly shows, result in deadlock. Bicameralism was abandoned by the University of Toronto thirty years ago in favour of a unicameral Governing Council in which all estates are represented. Some other universities have retained the bicameral structure but have altered its operation by affording significant academic and student participation at the Board level. One could only gain an accurate appreciation of how bicameralism actually works at a particular university by careful study of that institution's arrangements, practices, and traditions.
[65] I see nothing in the Trent Act that accords priority, paramountcy or "overriding jurisdiction" to the decision of the Board in the event of conflict between the Board and the Senate on an issue requiring the concurrence of both bodies. The Trent Act specifically excepts from the Board's powers "such matters specifically assigned by this Trent Act to the Senate or the councils of the faculties...". These words qualify all of the Board's powers, including its general governance power and its specific authority over property and expenditures. I agree with the appellants' submission that by enacting these words, the legislature provided its own solution to potential conflicts between the Board and the Senate. The legislature subtracted authority over educational policy from the Board's powers and protected Senate's power over educational policy from encroachment by any power of the Board. Neither the Board's power of general governance nor its power of the purse allow it to usurp the role of the Senate to control, regulate, and determine the educational policy of the University. The Trent Act makes no provision for a "tie-break" mechanism to resolve a conflict between the Board and the Senate. The way out of deadlock is not unilateral action by the Board but debate, discussion, negotiation, and compromise, or all else failing, legislation.
[66] There are two governing bodies, each with its own area of expertise and concern to be brought to bear upon the educational issues confronting the University. The Board cannot decide where to spend the University's resources without the Senate's determination of educational policy. Similarly, the Senate cannot implement an educational policy without the Board's determination to make available the required resources.
[67] The Board could, of course, require the University to change and curtail its academic program for valid financial reasons, but the role of the Senate, the body responsible for the University's educational policy, in identifying the activities or programs to be eliminated or curtailed would have to be respected. The power of the Board to determine the resources available for the University's program cannot be doubted, but neither should the Senate's power to define and shape the institution's educational policy with the resources that are available.
Characterization of the Decision to Close the Two Downtown Colleges
[68] I turn from this assessment of the legislative scheme to the central issue to be resolved on this appeal, namely, is the decision to close Peter Robinson and Catharine Parr Traill Colleges properly classified as a matter of educational policy? If it is, the concurrence of the Senate is required and the application for judicial review succeeds. If it is not, the Board is free to proceed without the agreement of the Senate and the application for judicial review fails.
[69] I respectfully disagree with the proposition that the decision to close the two downtown colleges can be properly characterized as nothing more than a decision in relation to the "management and control of the University and its property". For the reasons that follow, I have concluded that this decision has sufficiently significant implications for the educational policy of the University so as to require the approval of the Senate.
[70] In reaching this conclusion, I am mindful of the financial problems the University faces. It may well be that, viewed solely from the perspective of sound fiscal management, the decision to close the downtown colleges is in the best interests of the University. On that question, I express no view. Nor do I think it appropriate for us to comment on the wisdom of or the motives for the Senate's refusal to approve the decision to close the two downtown colleges. It is not the task of this court to decide the legal issue before us on the basis of what might seem to us to be best in the broader interests of the University as a whole. The reconciliation of conflicting views on how best to govern the affairs of the University must be achieved in accordance with the scheme of governance mandated by the legislature. Our role is restricted to the legal interpretation of that legislation and to ensuring that those involved in the affairs of the University respect the legislative scheme.
[71] I would also offer the following caveat. The legal characterization of the decision at issue here must take into account the history, traditions, practices, and policies of Trent University and the specific situation posed by the facts of this case. While the Trent Act follows a pattern that is found in the statutes of most Ontario universities, the terms of the Trent Act are in certain respects distinctive. One must never lose sight of the specific context within which a decision is made. The courts must, of course, adopt a principled approach based on rules of general application, but in another case, involving a different institution with a different history and faced with a different problem, a different decision as to the respective powers of a Board and Senate may well obtain.
[72] I group under two headings the arguments that lead me to conclude that the decision to close the two colleges does implicate the University's educational policy. First, I consider the significance of the colleges within Trent's college-based system of education. Second, I will examine the University's past practice in relation to the issue of closure or change of status of the two downtown colleges.
(a) Trent's College System
[73] From the inception of the University, its educational policy has been based on a college system, inspired by the example offered by the highly decentralized models of Oxford and Cambridge Universities. In its report following a tour of six English universities in 1963, Trent's Academic Planning Committee observed:
We have no doubt that Oxford and Cambridge succeed as university communities largely because they are broken down for purposes of living, teaching and recreation into relatively small college communities, and because the normal activities of living occur in academic surroundings.
[74] The educational policy considerations that informed the decision to adopt the college system included the importance of integrating cultural and social life with academic life, the high value to be placed on small group teaching, and the educational value of colleges as interdisciplinary communities with their own identities and traditions. Among the central elements of Trent's college-based system are the recognition that the nature of a university's physical premises has a profound effect on the academic experience of students and the recognition that student involvement in social, artistic, and community events is an essential part of education.
[75] When announcing the establishment of Trent's first colleges in 1964, founding President Symons described the colleges as "the central academic units of the University ... around which the whole life of the University will be focussed." The colleges were to function as "communities within the University", which would reinforce "the essential purpose of the University as a place of learning". Each college was to develop a unique identity, providing a unique academic environment for the cultural and social life of Trent's students.
[76] The University has maintained and followed these policies to the present day. In its current Academic Calendar, the University states that the colleges "are central not only to the organizational structure of the University, but to the academic and social experience of Trent students." It confirms that "[o]ver the years, each of the colleges has developed its own unique character, creating for Trent students a variety of distinct intellectual and social communities." It recognizes that the colleges are "centres of learning and focal points of social and cultural activity." The University describes the Academic Calendar as its "most authoritative academic publication". The Calendar represents a formal statement of the University's educational policy and the statements it makes cannot be disregarded as mere promotional hype.
[77] While the University's original plan envisaged all colleges being located at what is known as the Symons Campus, that plan changed early on. In the announcement of the establishment of "the two city colleges" in 1964, President Symons stated that they would be "permanent parts of the University" helping to bridge "[t]he ‘great divide' among university students ... between those who live at home and commute daily, and those who live in university residences and who can thus be full-time members of the university community." The uncontradicted evidence before us indicates that the downtown colleges have become more important than was originally conceived. They have evolved into vital centres of activity for the University and the local community, bridging the gap between "town and gown." Their significance to the present can be gauged from the fact that, throughout the 1990's, Trent's main priority for capital projects was the downtown colleges.
[78] The University has encouraged each of its colleges to develop a distinctive identity. The resulting diversity of the academic communities that comprise the University is regarded as a significant aspect of the educational experience offered by Trent. I do not accept my colleague's suggestion that there is a meaningful distinction to be drawn between educational policy on the one hand and educational experience on the other. It seems to me that the two are inextricably linked. The very purpose of an educational policy is to provide a certain kind of educational experience. The success or failure of an educational policy will be measured by the quality of the educational experience it provides. A change to the educational experience offered to students represents a change in educational policy.
[79] Trent is now comprised of five colleges: Peter Robinson College and Catharine Parr Traill College, the original two downtown colleges at issue in this appeal, and three colleges located at the Symons Campus, along the banks of the Otonabee River, some five kilometres from downtown. All Trent students must be affiliated with one of the five colleges. For the academic year 1999-2000, approximately one third of students in residence at Trent were located in the two downtown colleges (193 at Traill and 135 at Peter Robinson of a total of 1092). Similarly, approximately one third of all Trent students were affiliated with the downtown colleges (674 at Traill and 554 at Peter Robinson of a total of 3,793). Most lectures and seminars for first year students are offered at the Symons campus. The University's science program is offered at the science buildings located at the Symons campus. Lectures, seminars, and tutorials for all other courses are offered at either the Symons or downtown campuses. The University administrative offices, main library, bookstore, sporting facilities, and other like amenities are located at the Symons campus.
[80] Peter Robinson College is located in converted heritage houses and new buildings in downtown Peterborough. These buildings incorporate both residences and areas for academic activities. Sadleir House, the focus of college life, is an historic home, redesigned to integrate modern additions with its original architecture. The University's undergraduate Cultural Studies Program is based in the college. The History Program was also based at Peter Robinson at the time that the Board's resolution was passed. The Frost Centre for Canadian Heritage and Development Studies, a graduate program and research centre, and the graduate program in Methodologies for the Study of Western Culture and its associated research centre are also located at the College.
[81] The University's Academic Calendar states that Peter Robinson's location and size make it "particularly appealing to those students who are interested in an intimate university milieu which is not isolated from the city community." The College has always emphasized the need for student involvement in wider social issues in the community and abroad. Students often use their experience with community organizations as a base for their course work in Cultural Studies, Philosophy, Politics, and Sociology. Many of the after-hours activities that form part of the Native Studies program take place at Peter Robinson.
[82] The Calendar also recognizes the College's active program of visiting scholars, artists, broadcasters, musicians, and cultural theorists, and the role that Sadleir House plays as the venue for a variety of cultural events. These cultural events are not only an important, but also in many cases a required, part of the educational experience for students in Cultural Studies.
[83] Named in honour of the noted author, botanist, and pioneer Peterborough settler, Catharine Parr Traill College comprises a number of architecturally and historically significant older houses together with a relatively modern building. In addition to residence space, it houses teaching offices, seminar rooms, a lecture hall, an academic skills centre, a library, a computer lab, and study rooms. The College serves as the base for Trent's Canadian Studies, Philosophy, English, and Classical Studies Departments.
[84] The Academic Calendar describes Traill as "an active centre for teaching and learning" as both "an integral part of the academic and social life of Trent University as a whole" and "a self-contained and active community". A thriving visitors' program supplements its intellectual life, giving members of the College an opportunity to meet informally with writers, artists, professionals, politicians, musicians, and scholars. As the Calendar again acknowledges, "[t]he college's proximity to downtown Peterborough has also permitted Traill students to be actively involved in community cultural organizations ... and in organizations working for social change".
[85] The evidence before us indicates that the presence of the downtown colleges has helped Peterborough to develop a unique and varied cultural, artistic, and theatrical community that provides a significant educational opportunity for students, particularly important for those in Cultural Studies.
[86] Another notable aspect of Peter Robinson College is that it serves as a focal point for the activities of native political and cultural groups. Students frequently participate in aboriginal spiritual and cultural events. The evidence suggests that these activities, as well as the proposal adopted in 1998 by the Senate and Board for a First Peoples' House of Learning and Humanities Centre at Peter Robinson College, would be severely threatened by closure of the College.
[87] There is also evidence that closure of the College would imperil the distinctive interdisciplinary programs that are facilitated by the downtown location of faculty, student, and community resources at Peter Robinson College.
[88] In my view, the distinctive educational opportunities offered by Peter Robinson and Catharine Parr Traill Colleges reflect Trent's college-centred, interdisciplinary educational policy. They are thriving academic institutions, anything but "orphan colleges".
[89] I would emphasize that the Board's decision is to close these Colleges, not to relocate them. The decision cannot, in my view, be characterized simply as selling one or more outdated buildings that are too costly to maintain, a matter that would fall within the Board's exclusive authority in relation to the management of the University's property. The decision is rather to terminate the existence of two of the five colleges that form the basis of a University that has as its educational policy a college-based system. I would also note that it is by no means clear that either or both of the two closed Colleges will be replaced by new colleges. We were advised during oral argument that no final decision has been taken on whether to create new colleges in their place at the Symons campus.
[90] In my view, the Board's decision would put an end to the distinctive educational experience offered by the two downtown colleges and, accordingly, would change the educational policy of the University.
(b) Past University Practice
[91] Administrative interpretation and practice may be used to assist in determining the meaning of legislation and can be an important factor in case of doubt about legislative meaning: R. Sullivan, ed., Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994) at p. 471; Mattabi Mines Ltd. v. Ontario (Minister of Revenue), [1988] 2 S.C.R. 175 at pp.195-196. As explained by Dickson J. in Nowegijick v. R., [1983] 1 S.C.R. 29 at p. 37: "Administrative policy and interpretation are not determinative but are entitled to weight and can be an ‘important factor' in case of doubt about the meaning of legislation."
[92] The record before this court demonstrates that from an early stage in the history of the University to the present, it has been accepted that Board decisions regarding physical premises had to respect the Senate's role in establishing educational policy. This is hardly surprising. The physical resources required by a university can only be determined in the light of the university's academic and educational mission.
[93] University buildings exist for no other purpose than to allow the university to achieve its academic and educational goals. A building that would well serve one educational policy might frustrate the realization of a different educational policy. A large research-oriented University would require significant investment in libraries and laboratories. A small University devoted to undergraduate education premised on the college system would require a very different physical plant. A primarily undergraduate university structured on the model of interdisciplinary, residential colleges will require different premises than a primarily undergraduate university structured around its various academic disciplines. It follows that decisions regarding physical premises in an academic setting cannot be made purely on the basis of financial or administrative criteria. Such decisions can only proceed on the basis of the institution's educational and academic policies and priorities. The close connection between educational policy and physical premises grows and matures over time and does not end once the initial planning has been done. An academic community develops its own distinctive character that is more subtle and profound than the list of courses it offers. That character, and the consequent academic and educational opportunities the academic institution offers, is strongly influenced and shaped by the institution's physical premises and geographic surroundings.
[94] Trent's founders recognized that academic considerations had to precede any decisions about planning of the University buildings and campus. The premise of Trent's original planning process was that the physical layout of the University, its architecture, and matters of financial planning had to follow the educational policy of the University. At the first meeting of the Campus Planning Committee in September 1962, President Symons stated that it was "fundamental to the kind of university Trent is to be that planning of this sort should originate from the responsible academic staff."
[95] The record indicates that this approach has been followed in subsequent years, and that the Senate has played a significant role in planning the University's physical plant. In 1986-1987, the then President, with the approval of the Board, commissioned a comprehensive space study. The process included a Senate-Board consultative committee. The administration undertook to report to Senate as to how the space planning report would "relate to the academic policy of the University, as controlled by Senate". Senate was to approve the report before it went to the Board. The resulting space plan was indeed brought before Senate, where it received unanimous approval, before it was presented to the Board.
[96] At present, the Senate has a standing "Site Development and Space Utilization Committee". Its terms of reference include the following:
To receive, and to offer commentary, advice and recommendations on all proposals for:
(a) major reallocation of space between academic, academic support and administrative functions;
(b) development of new space;
(c) exterior alterations of or additions to University buildings and surrounding areas.
The Committee may itself initiate proposals on the above matters. Commentary, advice and recommendations may be directed routinely to the appropriate administrative officers of the University, and to Senate as appropriate.
[97] The current debate about the future of the downtown colleges is anything but new. As the University's Task Force on the SuperBuild Growth Fund observed, "the ‘campus consolidation' [debate] has taken place many times over the years. When this has occurred, strongly diverging views have emerged regarding the relative merits of maintaining multi-campus structure vs consolidating the University to a single campus location." Until the events that led to this proceeding, the Board seems to have recognized and accepted Senate's active role in planning. In particular, it appears to have been more or less accepted that the Senate had to approve any initiatives to relocate or close the downtown colleges.
[98] In April 1967, there was a suggestion that Peter Robinson College should move to the Symons (then Nassau) Campus. It was accepted that the proposal was subject to Senate approval.
[99] In February 1974, Senate adopted a by-law that any motion "altering the status or creating any new college or academic department" amounts to a statutory amendment that requires a specially conducted Senate vote. That bylaw remains in effect. There is no indication that the jurisdiction to enact this by-law has been questioned in the ensuing 27 years, during which the status of the downtown colleges has been a matter of on-going debate and concern.
[100] There can be no doubt that within the present Trent community, there is a strong perception that the decision to close the two downtown colleges implicates in a significant way the University's educational policy. While these perceptions are not determinative of the legal issue before the court, neither should they be ignored, particularly as even those proposing closure of the downtown colleges couched their arguments in terms of educational policy.
[101] The Report of the Task Force that recommended the closure of the two downtown colleges expressly weighed from the perspective of educational policy the benefits and shortcomings of maintaining the downtown colleges. The Task Force noted the benefits resulting from the flourishing of a distinctive, college-based ethos, the wide diversity in the attributes that the University can offer to its constituents, and the perception of a meaningful link to the Peterborough community. On the negative side, the Task Force mentioned counterproductive internal rivalry, logistical difficulties, and the blurring of Trent's image in a way that impedes effective marketing. It concluded that closing Peter Robinson and Traill Colleges and consolidating the University at the Symons campus "would bring the greatest benefits of an integrated, inter-disciplinary academic community". The Task Force's recommendations plainly did not rest on purely financial grounds but reflected, at least in part, a judgment on educational policy.
[102] The Senate's November 9, 1999 resolution that preceded its consideration of the President's request for "endorsement" of the Capital Development Strategy stated that "the college system, including the two downtown colleges, forms an integral part of Trent's educational policy" (emphasis added).
[103] The Trent Central Students Association passed a resolution on November 11, 1999 supporting an application to the SuperBuild program but with the following important reservation:
The current interdisciplinary college system including the two downtown colleges, in their present location, form an integral part of Trent University. We encourage the Board of Governors to endorse the Senate resolution opposing a change of location or a net reduction of facilities at any downtown or Symons campus college.
[104] As I have already noted, the current President acknowledged the need for approval of both the Senate and the Board where matters have both educational policy and financial implications. Indeed, the President followed this established practice by taking the Board's decision to close the two downtown colleges to the Senate for its "endorsement".
[105] In her letter to the University community, dated November 11, 1999, justifying the closure of the two downtown colleges after the plan was rejected by the Senate, President Patterson specifically invoked educational policy considerations, suggesting that campus consolidation would foster interdisciplinary relationships between scientists and humanists, relationships that had been frustrated by a divided campus. She acknowledged the "traditions, vitality and contributions that Peter Robinson and Catharine Parr Traill Colleges have given Trent" but stated her belief that
...consolidating our Peterborough operations on the Symons Campus will, eventually, allow the institution to strengthen its cohesiveness, morale and culture. I look forward to the day when we walk the talk of interdisciplinarity - when scientists and humanists work in sufficient proximity that they can achieve the goal of minds meeting across disciplinary fences that is the heart of Trent's founding principles.
[106] Following the Board's unilateral decision, four core members of Trent's original planning group - S.G. Denis Smith (Trent's first Vice-President), Richard Sadleir (founding Master of Peter Robinson College), Marion Fry (founding Principal of Traill College) and Thomas Symons (founding University President) - wrote a letter to the Board stating their "firm belief that adoption of the report's recommendations would destroy the character and special qualities that distinguish Trent University".
[107] In my view, taken as a whole, this represents a substantial body of evidence leading to the conclusion that within Trent University, from its earliest days forward, the debate concerning the status and continued existence of the two downtown colleges has been perceived as engaging the Senate's authority in relation to educational policy. While I do not suggest this to be determinative of the legal issue before the court, it does assist in resolving any doubt about the application of the legislative scheme. As I have already indicated, the legislation mandates a sharing of powers as between the Board and Senate with respect to decisions implicating both financial management and educational policy. The evidence relating to past practice supports the conclusion that the concurrence of both bodies was required on the facts of this case.
Standing and Justiciability
[108] I respectfully disagree with the submission the appellants lack standing to bring a judicial review application challenging the legality of the Board's decision to close Peter Robinson and Catharine Parr Traill Colleges.
[109] The criteria laid down by the Supreme Court of Canada in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 at pp. 630-634 for public interest standing are: (1) the application raises a serious justiciable issue; (2) the applicant is either directly affected by the impugned decision or has a genuine issue as a citizen in its legal validity; and (3) there is no other reasonable or effective manner to bring the issue before the court.
[110] It is apparent from the earlier portion of my reasons that I find that the appellants' application for judicial review raises a serious justiciable issue. It is well established that as statutory bodies, universities are amenable to judicial review where the exercise of a statutory power is challenged: Paine v. University of Toronto (1981), 34 O.R. (2d) 770 (C.A.); Page v. Hull University Visitor, [1993] 1 All E.R. 97 (H.L.). This is not a case that raises concerns about judicial interference with internal University matters that are best left to be resolved by the University's own institutional means. The decision at issue does not concern matters of judgment on academic standards and, as I have already observed, there is nothing in the University's internal scheme of governance that is capable of resolving this dispute.
[111] The appellants are both directly affected by the decision. One appellant is a member of the Senate and both head programs at a downtown college. In any event, they clearly have a genuine interest as citizens in the validity of the administrative decision being challenged.
[112] Nor am I persuaded that there is another reasonable or effective manner to bring the issue before the court. It is not at all clear to me that the application could be brought in the name of the Senate, an unincorporated body that may well lack capacity to bring legal proceedings. Standing has been recognized in favour of individual members of a university community to challenge the legality of similar Board decisions on the basis that statutory powers have been exceeded: Jeffrey v. Université de Moncton (No.1) (1985), 62 N.B.R. (2d) 413 (N.B. Q.B.). The appellants can hardly be characterized as "busy-bodies", bringing an unnecessary meddling type proceeding. If there is one thing on which the record is clear, it is that the legality of the Board's actions is a matter of pressing concern that has divided the Trent community. Whatever view one might take of the rights or wrongs of the Board's decision, it seems to me to be imperative that its legality be determined once and for all so that the University can get on with its important academic work. This case is analogous to Energy Probe v. Canada (A.G.) (1989), 68 O.R. (2d) 449 (C.A.) at p. 469 where this court accorded standing to "serious individuals ... presenting concerns that are of fundamental significance" in a proceeding that "is not an abuse of the public interest exception, but rather [one that] tends to serve it very well."
[113] For these reasons, I conclude that the appellants satisfy the requirements for public interest standing and the court should exercise its discretion in favour of entertaining the application.
Conclusion
[114] The Board's decision to close two of Trent's five residential colleges and eliminate the University's presence in downtown Peterborough would destroy two of its five constituent distinct intellectual and social communities and would eliminate two of its five centres of learning and focal points of social and cultural activity. I conclude that the decision to close two of Trent's five colleges engages an important issue of educational policy for the University that, pursuant to s. 12 of the Trent Act, requires the approval of the Senate.
[115] I am also of the view that the appellants satisfy the requirements for standing to bring these proceedings.
[116] Accordingly, I would allow the appeal, set aside the judgment of the Divisional Court, and substitute an order quashing the resolution of the Board of Governors of Trent University dated November 12, 1999, insofar as it purports to authorize the closure of Peter Robinson College and Catharine Parr Traill College. I would allow the appellants their costs, both here and below.
(signed) "Robert J. Sharpe J.A."
